THE ROLE OF U.S. TECHNOLOGYCOMPANIES AS ENFORCERS OF EUROPE'S

NEW INTERNET HATE SPEECH BAN

Evelyn Aswad*

On May 31, 2016, the European Commission together withFacebook, Twitter, Google's YouTube, and Microsoft (the ICTCompanies) issued a voluntary Code of Conduct on Countering IllegalHate Speech Online that requires removal of any hate speech, asdefined by the European Union.' The impetus for this Code includedthe rise of intolerant speech against refugees as well as concerns thathate speech fuels terror attacks.2 Germany in particular has garneredsignificant media attention for its robust crackdown on Internet hatespeech targeting refugees.'

The road to governmental excess can be paved with goodintentions in times of crisis, with the laudable goals of refugeeprotection and terror prevention reflecting such good intentions inthis case. Civil society groups have criticized the Code as endangeringfreedom of expression and lamented their exclusion from its drafting

* Herman G. Kaiser Chair in International Law, Professor of Law, andDirector of the Center for International Business and Human Rights at theUniversity of Oklahoma College of Law. The author wishes to thank JasonPielemeier, Michael Samway, Sabeena Rajpal, and Rebeca West for reviewing thearticle. The views are solely those of the author.

1. Julia Fioretti & Foo Y. Chee, Facebook, Twitter, YouTube, Microsoft BackEU Hate Speech Rules, REUTERS (May 31, 2016), http://www.reuters.com/article/us-eu-facebook-twitter-hatecrime-idUSKCNYMOVJ.

2. Id.3. See, e.g., Anthony Faiola, Germany Springs to Action over Hate Speech

Against Migrants, WASH. POST (Jan. 6, 2016), https://www.washingtonpost.com/world/europe/germany-springs-to-action-over-hate-speech-against-migrants/20 16/01/06/6031218e-b315-11e5-8abc-d09392edc6l2_story.html (reporting sentences offive months probation for hateful online statements against refugees); RuthBender, German Police Carry Out Nationwide Crackdown on Internet HateSpeech, WALL ST. J. (Jul. 13, 2016), http://www.wsj.com/articles/german-police-carry-out-nationwide-crackdown-on-internet-hate-speech-1468429275 (reportingthat in one day German police raided homes of 60 individuals suspected of onlinehate speech).

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process. 4 A Harvard law professor was initially outraged at the U.S.companies for selling out on First Amendment free speech principles,but ultimately decided that society shouldn't expect private sectoractors to protect speech.'

With governments no longer holding exclusive power toresolve international crises and companies playing significant roles inglobal affairs, it is not surprising that U.S. companies find themselvesin the middle of this debate, triggering three key questions: Shouldthe ICT Companies have agreed to this Code? Is it fair to expect thatU.S. companies will seek to respect freedom of expression abroadwhen democratic governments raise concerns about risks to refugeesand others? How should these companies handle future requests totake down hate speech in Europe?

This Essay seeks to unpack these questions. The Essay firstexamines the Code's hate speech definition as well as the companies'commitments. It then analyzes whether such commitments comportwith two leading business and human rights frameworks that theU.S. Government supports: the United Nations Guiding Principles onBusiness and Human Rights and the Global Network Initiative. TheEssay concludes that the Code is inconsistent with these frameworksas well as U.S. governmental expectations for U.S. companiesoperating abroad. This Essay then proposes ways forward for the keyenforcers of the speech code, the ICT Companies.

4. See, e.g., The Center for Democracy and Technology, Letter to EuropeanCommission on Code of Conduct for "Illegal" Hate Speech Online, CTR. FORDEMOCRACY & TECH. (June 3, 2016), https://cdt.org/insight/letter-to-european-commissioner-on-code-of-conduct-for-illegal-hate-speech-online/(expressing concern that the new Code will be insufficient to protect freedom ofexpression online); EDRi and Access Now Withdraw from EU CommissionDiscussions, ACCESS Now (May 31, 2016, 7:55 AM), https://www.accessnow.org/edri-access-now-withdraw-eu-commission-forum-discussions/.

5. Noah Feldman, Free Speech Isn't Facebook's Job, BLOOMBERG:BLOOMBERGVIEW (June 1, 2016, 12:08 PM), https://www.bloomberg.com/view/articles/20 16-06-01/it-s-not-facebook-s-job-to-guarantee-free-speech.

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I. THE EUROPEAN CODE'S DEFINITION OF HATE SPEECH ANDRELATED COMMITMENTS

While there is no universally accepted definition of hatespeech,' the Code defines hate speech according to the 2008 EuropeanFramework Decision 2008/913/JHA (the Framework) as "all conductpublicly inciting to violence or hatred directed against a group ofpersons or a member of such a group defined by reference to race,colour, religion, descent or national or ethnic origin."7 The definitionappears to contain four components: the speech must be (1) public (2)rise to the level of "incitement" (3) to violence or hatred, and (4) bedirected against particular enumerated groups. 8 The Frameworkitself further defines hate speech more broadly, including "publiclycondoning, denying or grossly trivializing crimes of genocide, crimesagainst humanity and war crimes .. . when the conduct is carried outin a manner likely to incite to violence or hatred" against theenumerated groups.' The breadth (and vagueness) of the scope of"hate speech" is emphasized by a provision allowing Member Statesto "choose to punish only conduct which is either carried out in amanner likely to disturb public order or which is threatening, abusiveor insulting.""o This provision implies the definition of hate speech isso broad that it includes speech that is not likely to affect the peace,as well as mere insults. The Code and Framework contemplatecriminal sanctions for individual perpetrators and do not referenceinternational law standards on freedom of expression."

The Code states the ICT Companies will be "taking the leadin countering the spread of illegal hate speech online" and provides a

6. Suzanne Nossel, To Fight 'Hate Speech,' Stop Talking About It, WASH.POST: POSTEVERYTHING (June 3, 2016), https://www.washingtonpost.com/posteverything/wp/20 16/06/03/we-dont-need-laws-banning-hate-speech-because-it-doesnt-exist/.

7. Code of Conduct on Countering Illegal Hate Speech Online, EUROPEANCOMMISSION (May 31, 2016), http://ec.europa.eu/justice/fundamental-rights/files/hate-speech-code of conducten.pdf [hereinafter The Code].

8. Id.9. Council Framework Decision 2008/913/JHA, Combatting Certain Forms

and Expressions of Racism and Xenophobia by Means of Criminal Law, art. 1.1 (c)(Nov. 28, 2008), http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex:32008FO913 [hereinafter Council Framework Decision].

10. Id., art. 1.2 (emphasis added).11. Id., art. 3; The Code, supra note 7.

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number of specific commitments.12 For example, the ICT Companiespledge to have processes to review notifications of hate speech andpublic policies prohibiting "incitement to violence and hatefulconduct."1 3 Upon receipt of a valid notification of hate speech, the ICTcompanies agree to review the requests against their own guidelinesand, as necessary, with national laws that implement theFramework.14 They are to review the majority of the notificationswithin 24 hours and remove or disable illegal content." The ICTCompanies pledge to work with civil society partners to promote theirability to report illicit speech, to feature such "trusted reporters" ontheir websites, and to promote counter-narratives to the hate speechthat they have suppressed." The European Commission and the ICTCompanies will produce an assessment of this program by the end of2016.17

II. CONTEMPORARY BUSINESS AND HUMAN RIGHTS STANDARDS

A. The United Nations Guiding Principles on Business andHuman Rights

This summer marks the fifth anniversary of the U.N. HumanRights Council's unanimous adoption of the Guiding Principles onBusiness and Human Rights (the U.N. GPs) in a resolution co-sponsored by the U.S. Government.1 8 The U.S. Government expects

12. The Code, supra note 7, at 2. Freedom House recently published a reportnoting with concern an increasing trend in governments requiring contentremoval by technology companies as governmental blocking of websites hasbecome less effective. This troubling trend shifts the burden of censorship insociety to private companies, forcing them to decide what is legal in countrieswhere local law may not meet international standards and complicates efforts topromote freedom of expression on the Internet. Freedom on the Net 2015:Privatizing Censorship, Eroding Privacy, FREEDOM HOUSE 6-8 (Oct. 2015),https://freedomhouse.org/sites/default/files/FOTN%202015%2OFull%20Report.pdf.

13. The Code, supra note 7, at 2.14. Id.15. Id.16. Id. at 3.17. Id.18. Human Rights Council Res. 17/4, U.N. DOC. A/HRC/17/L.17/Rev.1

(June 15, 2011); U.N. Special Representative of the Secretary-General on theIssue of Human Rts. and Transnat'l Corp. and Other Bus. Enterprises, Report for

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American companies to implement the U.N. GPs and treat thisframework as a floor rather than a ceiling in their operations. 9 TheU.N. GPs set forth global expectations for how companies should actwhen confronting human rights challenges, such as requests bygovernments to censor speech. Companies should respect humanrights throughout their operations, which means avoiding infringingon human rights and addressing adverse human rights impacts.20

Under the U.N. GPs, companies should conduct human rights duediligence and engage actively with external stakeholders in assessinghuman rights challenges.

General Principle 12 of the U.N. GPs defines the content of"human rights" according to four key U.N. instruments.21 The officialcommentary provides that companies may need to refer to additionalU.N. instruments for guidance. The U.N. GPs do not advise (orauthorize) companies to use regional or national human rightsinstruments to define the content of internationally recognizedhuman rights. The U.N. GPs correctly define "human rights" byreference to international instruments rather than regionalinstruments, which can depart from international norms, providingfewer human rights protections at times. Where there is a conflictbetween local law and internationally recognized human rights, theU.N. GPs provide that companies should seek, to the extent possible,to respect international human rights while ultimately complyingwith local law and should address adverse human rights impacts.22

Of the four instruments highlighted in General Principle 12,the International Covenant on Civil and Political Rights (JCCPR) isthe most relevant to the issue of hate speech. The ICCPR has 168State Parties, including the United States.2 3 Article 19 provides for a

Human Rights Council, U.N. DOC. A/HRC/17/31 (Mar. 21, 2011) [hereinafter U.N.GPs].

19. U.S. DEP'T OF STATE, BUREAU OF DEMOCRACY, HUMAN RIGHTS, ANDLABOR, U.S. GOVERNMENT APPROACH ON BUSINESS AND HUMAN RIGHTS 4 (2013),http://www.humanrights.gov/wp-content/uploads/2013/06/usg-approach-on-business-and-human-rights-updatedjune20 13.pdf (last visited June 24, 2016)[hereinafter U.S. APPROACH].

20. UN GPs, supra note 18, Principle 11. For ICT companies, respectinginternational human rights in their operations would include their terms ofservice and other policies involving users.

21. Id., Principle 12.22. Id., Principles 22 and 23.23. International Covenant on Civil and Political Rights, opened for signature

Dec. 16, 1966, 999 U.N.T.S. 171 (entered into force Mar. 23, 1976) [hereinafterICCPR]; International Covenant on Civil and Political Rights, UNITED NATIONS

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broad right to seek and receive information of all kinds, regardless offrontiers, and through any media.2 4 It permits states to limit speechwhen a three prong test is met. To be valid, speech restrictions mustbe: (1) "provided by law" (i.e., properly promulgated and provideappropriate notice) and (2) "necessary" (i.e., the speech restrictionmust, among other things, be the least intrusive means of achievinggovernmental purposes) (3) to achieve an enumerated legitimategovernment objective (e.g., protection of the rights of others, nationalsecurity, public order, public health or morals).2 5 Thus any limitationon speech, including hate speech, must meet Article 19's tripartitetest to be valid.

Article 20(2) of the ICCPR provides for mandatory bans onspeech for "[a]ny advocacy of national, racial or religious hatred thatconstitutes incitement to violence, discrimination, or hostility." 26During the ICCPR negotiations, the United States (led by EleanorRoosevelt), the UK, and others argued against this provision as it wasambiguous and likely to be misused by dictatorships. Ultimately,however, the main proponent-the Soviet Union-succeeded inkeeping the provision in.2 7 Not only was the negotiating history ofArticle 20(2) contentious, but this provision remains the subject ofmuch controversy. For example, a 2006 U.N. report found that therewas no consensus among states about the meaning of key terms inArticle 20, such as "incitement," "hatred," and "hostility."2 8 The U.N.subsequently undertook a process to convene experts in four regionalworkshops to propose a way forward for determining the scope and

TREATY COLLECTION, https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg-no=IV-4&chapter=4&clang=_en (last visited July 5, 2016) [hereinafterU.N. Treaty Collection: ICCPR].

24. ICCPR, supra note 23, art. 19.25. Id., art. 19(3). The U.N. Human Rights Committee, the body charged with

monitoring implementation of the ICCPR, has issued its recommendedinterpretations of Article 19. The interpretations of the tripartite test in the textabove comes from its most recent guidance. U.N. Human Rights Comm., GeneralComment No. 34, ¶ 25-34, U.N. Doc. CCPR/C/GC/34 (Sept. 12, 2011) [hereinafterGC 34]. The U.S. Government interprets the tripartite test similarly. OFFICE OFTHE LEGAL ADVISER, UNITED STATES DEP'T OF STATE, DIGEST OF UNITEDSTATES PRACTICE IN INTERNATIONAL LAW 226-227 (2011).

26. ICCPR, supra note 23, art. 20(2).27. For a discussion of the negotiations, see Evelyn M. Aswad, To Ban or Not

to Ban Blasphemous Videos, 44 GEO. J. INT'L L. 1313, 1320-22 (2013).28. U.N. High Commissioner for Human Rights, Report on Incitement to

Racial and Religious Hatred and the Promotion of Tolerance, ¶ 3, 5 U.N. DOC.A/HRC/2/6 (Sept. 20, 2006).

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content of Article 20.29 The experts found a lack of prosecution of"real" incitement situations and pervasive prosecution of minoritiesunder the guise of "incitement."o3 This process of dialogue amongexperts (but not ICCPR State Parties) culminated in the Rabat Planof Action, as the last experts' consultation was held in 2012 in Rabat,Morocco.3' The Rabat Plan proposes definitions for key terms inArticle 20 and notes additional tools for combatting intolerance thatdo not involve banning speech,3 2 but U.N. member states have notendorsed the Rabat Plan and the scope of Article 20 remains underdiscussion.

While Article 20(2) contains ambiguities, there are indicationsthat the article is to be read narrowly. For example, to trigger Article20(2), there must be "advocacy", i.e., the speaker must intend to inciteothers, and thus it does not encompass all speech that listeners findrepugnant or hateful.3 3 Moreover, the negotiating history makes clearthat Article 20(2) was included to prohibit speech that would rise tothe level of creating the next Holocaust and not to capture everyhateful or offensive expression.34 In particular, it was meant tocapture speech that would galvanize action against the target groupand not speech that merely offended the target group. 5 In addition,the Human Rights Committee believes any restriction under Article20(2) must meet Article 19's tripartite test as well as other ICCPRrequirements in order to constitute a valid restriction on speech. 6

Although not specifically noted in General Principle 12 or itscommentary, the U.N. Convention on the Elimination of RacialDiscrimination (CERD) is also relevant. Article 4 requires that StatesParties, with "due regard" to other human rights including freedom ofexpression, prohibit "dissemination of ideas based on racialsuperiority or hatred, incitement to racial discrimination, as well as .

incitement to [racial violence]."3 7 The U.N. Committee charged with

29. The Rabat Plan of Action on the Prohibition of Advocacy of National,Racial or Religious Hatred that Constitutes Incitement to Discrimination,Hostility, or Violence, 1 1 (Oct. 5, 2012), http://www.ohchr.org/Documents/Issues/Opinion/SeminarRabat/Rabat draft-outcome.pdf.

30. Id. at 2.31. Id. at 1.32. Id. at 4.33. Aswad, supra note 27, at 1319.34. Id. at 1322.35. Id.36. GC 34, supra note 25, ¶ 50-52.37. International Convention on the Elimination of All Forms of Racial

Discrimination, opened for signature Mar. 7 1966, art. 4, 660 U.N.T.S. 195

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monitoring implementation of the CERD has recently issued itsrecommended interpretations of Article 4. While some of the guidanceis ambiguous at times, it does provide that any racist speechrestrictions must pass ICCPR Article 19's tripartite test (e.g., to bevalid, speech restrictions must give society proper notice and serve asthe least intrusive means to combat racism)."

As multinational companies often seek help from their homecountries when becoming entangled in human rights challengesabroad, it is important to note the U.S. approach to this internationalframework. Given its broad speech protections, the United States hastaken a reservation to both ICCPR Article 2039 and CERD Article 4.40On many occasions the United States has explained its reasoning. Forexample, in response to a U.N. survey on how countries interpretArticle 20, the United States recalled President Obama's historicremarks in pre-Arab Spring Cairo, in which he said "suppressingideas never succeeds in making them go away."41 The U.S. submissionnoted that censorship raises the profile of speech-therebymagnifying its content and authors-and also drives ideasunderground, making them fester and more dangerous. 42Thesubmission recalled early restrictive U.S. speech laws, including banson inciting hatred against the government and censorship of criticism

(entered into force Jan. 4, 1969) [hereinafter CERD]. The CERD has 177 StatesParties, including the United States. International Convention on the Eliminationof All Forms of Racial Discrimination, UNITED NATIONS TREATY COLLECTION,https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg no=IV-2&chapter=4&clang=_en (last visited June 27, 2016) [hereinafter U.N.Treaty Collection: CERD].

38. U.N. Comm. on the Elimination of Racial Discrimination, GeneralRecommendation No. 35, 1[ 8, 12, 19, U.N. DOC. CERD/C/GC/35 (2013).

39. The U.S. reservation provides that ICCPR Article 20 does not require orauthorize any restrictions on First Amendment speech and association rights.U.N. Treaty Collection: ICCPR, supra note 23. The United States also submitted adeclaration at the time of ratification, which states "[t]hat it is the view of theUnited States that States Party to the Covenant should wherever possible refrainfrom imposing any restrictions or limitations on the exercise of the rightsrecognized and protected by the Covenant, even when such restrictions andlimitations are permissible under the terms of the Covenant." Id.

40. The U.S. reservation provides that nothing in the Convention requireslaws incompatible with the U.S. Constitution, including free speech. U.N. TreatyCollection: CERD, supra note 37.

41. The Permanent Mission of the United States of America, United StatesGovernment Response to the U.N. High Commissioner for Human RightsConcerning Expert Workshops on Incitement to Nat'l, Racial or Religious Hatred 1(Nov. 3, 2010), http://www.state.gov/documents/organization/179250.pdf.

42. Id.

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of slavery, which were counterproductive, as public debate andscrutiny proved a better means for progress than censorship.43 TheUnited States now adheres to high bars for banning repugnantexpression: the only hateful speech that may be banned regardsadvocacy that incites imminent and true threats of violence, whichare statements a reasonable recipient would understand to mean thespeaker intends him or her bodily harm.4 4 However, the submissionnoted that the United States does not "sit idly by" when "toxicexpressions" are spreading, but rather deploys a robust array of local,state, and national governmental tools to combat intolerance withoutbanning speech, including various forms of proactive outreach tominority groups, conflict resolution services, training programs,dialogue initiatives, and the enforcement of discrimination and hatecrime laws. 45 The ICT Companies can draw important cues about howtheir home country is likely to view rigorous Code enforcement fromthis background.

B. The Global Network Initiative (GNI)

Another framework the U.S. Government supports is theGNI, a multi-stakeholder initiative comprised of companies, civilsociety, academics, and investors to provide guidance to companiesfacing freedom of expression and privacy challenges in their onlineoperations. 46 The GNI company participants are Google, Yahoo!,Microsoft, Facebook, and Linkedln (but not Twitter). As GNImembers, these companies have committed to respecting freedom ofexpression, as defined in ICCPR Article 19 (and not in regionalhuman rights instruments). The GNI does not explicitly referenceICCPR Article 20 or CERD Article 4 in its standards. If participatingcompanies encounter requests that do not comport with GNI

43. Id.44. Id. at 4-5.45. Id. at 5. It should also be noted that recently the White House launched

an initiative enlisting the assistance of the private sector in helping with thecurrent international refugee crisis. Rather than requesting companies banhateful speech, the White House initiative is focused on harnessing private sectorefforts to contribute to the education, employment, and enablement of refugeepopulations throughout the world so they can be self-reliant and integrate intotheir new communities. FACT SHEET: WHITE HOUSE LAUNCHES A CALL TOACTION FOR PRIVATE SECTOR ENGAGEMENT ON THE GLOBAL REFUGEE CRISIS(June 30, 2016), https://www.whitehouse.gov/the-press-office/2016/06/30/fact-sheet-white-house-launches-call-action-private-sector-engagement-0.

46. GLOBAL NETWORK INITIATIVE, http://www.globalnetworkinitiative.org(last visited June 24, 2016); U.S. APPROACH, supra note 19, at 10.

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standards, they are supposed to push back to the extent possible (e.g.,by challenging governments in domestic courts or seeking theassistance of international human rights bodies) before complyingwith local law.47

C. Comparison of the Code with International Standards

As the Code is pinned to regional concepts of illegal speechrather than international instruments, it is important to considerhow European approaches to freedom of expression may differ fromthe international human rights regime (and therefore from the U.N.GPs and GNI). The European Convention on Human Rights provideslanguage similar to ICCPR Article 19 for freedom of expression,48 butit has been interpreted by the European Court on Human Rights inways that depart significantly from ICCPR interpretations involvinghate speech by the U.N. Human Rights Committee. For example, theEuropean Court has upheld French criminal sanctions for Holocaustdenial without engaging in a serious analysis of whether therestriction on speech was permissible (e.g., necessary to achievegovernmental aims) as it deemed the offensive speech substantively"incompatible" with the Convention and thus unworthy of scrutiny.49

The Court's approach of removing such offensive speech from anyprotection of the Convention has been called the guillotine effect.50

The U.N. Human Rights Committee, on the other hand, has recentlystated that the ICCPR does not condone general prohibitions ondenials of historic facts.

Similarly, the U.N. Human Rights Committee and theEuropean Court have also approached blasphemy, or speech thatoffends religious sensibilities, differently. For example, the EuropeanCourt upheld Austria's decision to engage in prior censorship of a filmthat dealt with Christian beliefs in a highly offensive manner because

47. GLOBAL NETWORK INITIATIVE'S IMPLEMENTATION GUIDELINES 5,http://globalnetworkinitiative.org/implementationguidelines/index.php(last visited June 24, 2016).

48 . [European] Convention for the Protection of Human Rights andFundamental Freedoms, opened for signature Nov. 4, 1950, art. 10, Europ. T. S.No. 5, 213 U.N.T.S. 221 (entered into force Sept. 3, 1953).

49. See Garaudy v. France, 2003-IX Eur. Ct. H.R. 369.50. JEROEN TEMPERMAN, RELIGIOUS HATRED AND INTERNATIONAL LAW: THE

PROHIBITION OF INCITEMENT TO VIOLENCE OR DISCRIMINATION 149-152 (2016).51. GC34,supra note 25, at 149.

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it was "disparaging religious doctrines." 52 The Court held thatprotecting citizens from having their religious feelings insulted was alegitimate government purpose 5 3 and that banning the film wasnecessary, as it could have offended the majority Catholic populationand thus disturbed the peace (though it cited to no evidence inreaching this conclusion). 54 The U.N. Human Rights Committee, onthe other hand, has recently stated that prohibitions on lack ofrespect for religions or beliefs are generally incompatible with theICCPR unless they meet the high standard in Article 20(2) and othertreaty provisions such as Article 19's tripartite test.5 5 From suchexamples, it is evident that the European human rights system'sapproach to hateful speech is not always in line with theinternational free speech protections.

As noted, the U.N. GPs and GNI provide that companiesshould respect internationally recognized human rights. At aminimum, this means the ICT Companies need to assess anygovernmental speech restriction (even those arising from ICCPRArticle 20(2) or CERD Article 4) by ICCPR Article 19's tripartite test.In this case, the Framework and Code are inconsistent withinternational protections for free speech in a variety of ways. Forexample, as noted previously, the definition of hate speech isremarkably broad and vague, apparently encompassing speech that ismerely insulting, speech that is not likely to affect public order, andspeech that denies historic facts. 56 In addition, the Code andFramework require criminal penalties for such "hate speech." Thispresumption of the appropriateness of criminal sanctions for such abroad definition of hate speech is not consistent with the ICCPR'srequirement that the ban on speech and the ensuing sanction must be

52. Otto-Preminger-Institut v. Austria, 295 Eur. Ct. H.R. (ser. A), at 1 11(1994).

53. Id., ¶ 48.54. Id., ¶ 56. Although this is a case from 1994, the Court's 2013 overview of

its religious freedom jurisprudence continues to reference this case as good law.EUROPEAN COURT OF HUMAN RIGHTS, RESEARCH DIV., OVERVIEW OF THE COURT'SCASE-LAW ON FREEDOM OF RELIGION 20 (2013), http://echr.coe.int/Documents/Research-report-religionENG.pdf.

55. GC 34, supra note 25, ¶ 48. This analysis is not exhaustive of the ways inwhich the European Court's jurisprudence departs from the U.N. Committee'sICCPR interpretations.

56. See Council Framework Decision, supra note 9, art. 1.1. The UN specialexpert on freedom of expression has also criticized European human rights law asfailing to "define hate speech adequately." Report of the Special Rapporteur on thePromotion and Protection of the Right to Freedom of Opinion and Expression,¶ 25, U.N. Doc. A/71/373 (Sept. 6, 2016).

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the least intrusive means of achieving objectives.5 7 If the objectivescan be achieved without bans or criminal penalties, then the bansand/or punishments are inconsistent with the ICCPR. In addition,ICCPR Article 26 requires that laws not discriminate among groups.Clearly the Code's prohibition on hate speech only protects certaingroups (primarily relating to race and religion) to the exclusion ofothers, which could also call into question such laws under theICCPR's equal protection provision. In sum, by agreeing to regional(European) rather than international standards, the ICT Companieshave departed from the U.N. GPs and GNI frameworks and riskcontributing to international human rights violations."

III. RECOMMENDATIONS

With this background and analysis, the answers to thequestions at the beginning of this Essay become fairly evident. Theanswer to the first question (should the ICT Companies have agreedto this Code?) is no. U.S. companies should not agree to voluntarycodes of conduct on human rights matters that are not expresslylinked to relevant U.N. human rights instruments. Pinning theircommitments on regional and national-rather than international-human rights standards puts companies at risk with respect to globalexpectations embodied in the U.N. GPs as well as U.S. governmentexpectations. Moreover, agreeing to a European code that is notlinked to international standards will make it more difficult for thosesame companies to resist signing on to voluntary codes of conduct

57. The international community is increasingly recognizing many steps canbe taken to combat intolerance without banning speech. See, e.g., Human RightsCouncil Res. 16/18, U.N. Doc. A/HRS/RES/16/18 (Apr.12, 2011) (providingnumerous measures to combat religious intolerance/hatred without banningspeech). The ICT companies would be well served in examining this list of actionsteps when assessing whether a request to ban speech is the least intrusivemeans to accomplishing governmental goals.

58. Another potential problem with the Code is that it bans not onlyincitement to "violence," but also incitement to "hatred." Many Europeancountries ban "incitement to hatred." Temperman, supra note 50, at 197. AEuropean scholar has argued that "incitement to hatred" is broader than Article20(2) and is not based on the likelihood of harm against the target group. Id. at198. He proposes that Article 20 is meant to occupy the field on hate speech, suchthat "weaker" forms of hate speech cannot be banned if they do not rise to level ofArticle 20(2). Id. at 196. Even if one disagrees (and therefore believes hate speechthat doesn't rise to the level of Article 20(2) may be banned), such "weaker" hatespeech would still need to pass Article 19(3)'s tripartite test.

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linked to local norms that other (less democratic) regional bodies ornational governments may request in the future.

With regard to the second question (is it fair to expect U.S.companies to respect freedom of expression abroad?), the answer isyes. Under contemporary business and human rights frameworksthat the U.S. Government supports-the U.N. GPs and the GNI-businesses are expected to respect human rights, as defined in U.N.instruments, in their operations, including their terms of service.They are expected to engage in human rights due diligence, workwith external stakeholders in identifying and dealing with humanrights challenges, and use good faith efforts to avoid infringinghuman rights, as defined in U.N.-not regional or local-instruments.

The answer to the third question (how should these companieshandle future requests to take down hate speech in Europe?) is morecomplicated. Ideally, the companies would renegotiate or withdrawfrom the Code. Assuming there is too much water under the bridgefor that to happen, the companies should make clear that they willinterpret the Code in light of the U.N. GPs, which represents theglobal framework that both EU states and the United States support.Thus the ICT Companies should develop operating policies that arepegged to U.N. instruments, which means (at a minimum) examiningtake down requests against the requirements of ICCPR Article 19'stripartite test, including whether censoring speech constitutes theleast intrusive means for achieving legitimate ends. When there isambiguity in international standards on free speech (such as whatconstitutes "incitement")5 9 or other opportunities to promote broadexpression protections, I would encourage U.S. companies as a matterof policy to interpret the ambiguity or seize other opportunities infavor of U.S. free speech approaches' to the extent possible, given thedangers inherent in governmental censorship and the possibility ofusing tools other than speech bans to promote tolerance.

As provided for in the U.N. GPs and GNI, the companiesshould pursue all possible avenues to narrow governmental requeststhat restrict speech in a manner incompatible with internationalstandards (including challenging take down requests in court), ratherthan abiding by a Code that is untethered to international standards.Even if the European Commission is not amenable to including civilsociety in discussions about the Code, companies should include civilsociety in their own deliberations about the Code, as provided in the

59. See supra notes 28-31 and accompanying text; see also supra note 58.60. See supra notes 40-45 and accompanying text.

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U.N. GPs. If ultimately compelled to follow European or national law,then according to the GPs and GNI, companies should do so afterhaving engaged in the type of proactive diligence outlined above andshould address negative impacts on internationally recognizedhuman rights.

In sum, agreeing to governmental requests for voluntaryadherence to regional or national speech rules is not appropriate in2016. Rather, the ICT Companies should pin their policies to the U.N.GPs and GNI and be guided by international standards whenoperating abroad. While the governmental concerns prompting theCode are legitimate, departing from the international human rightslaw framework will inevitably trigger the law of unintendedconsequences, in this case repeated negative impacts on freedom ofexpression and ultimately the weakening of those democracies, whichwill only undermine the noble goals of refugee protection and theprevention of terrorism.